Wednesday, June 27, 2018


I was all set to write a piece on Maxine Waters' irresponsible call to harass Trump officials. Suffice to say, it was about the dumbest thing I've heard come out of the mouth of a member of Congress since the last time Louie Gohmert and Steve King were seen in the same room together.

Then I thought about writing a piece on the announcement that Harley Davidson was moving some of its production to Europe to avoid paying punitive tariffs due to Trump's ridiculous trade war. Before this president is done, I was going to write, the cost to the economy will likely be half a million jobs and a full point in GDP growth. That would make for a great bumper sticker for Democrats, I thought: "Trade Wars Equal Job Losses!" Kinda catchy, don't you think?

And then this news flash hit my phone:

Justice Anthony Kennedy to retire from Supreme Court at end of July.

After I finished throwing up in my mouth, I thought this changes everything. Screw Waters, screw the owner of that stupid restaurant and, yes, screw even Harley Davidson. I don't even ride motorcycles, so what do I care? This trumps everything, no pun intended. As they say in the Navy, "All hands on decks!" Or as I'm sure they said on the Titanic, "Every man for himself."

This shit just got real. How real? I can't think of a bigger or more important issue this year. The tax law, healthcare, trade, even the Russia investigation all pale in comparison. I won't mince words here: if Trump is allowed to appoint a replacement for Kennedy, every bit of jurisprudence from Brown v. Board of Education to Roe v. Wade to Obergefell v. Hodges is in jeopardy. What's left of Obamacare is gone for sure. I'm not being hyperbolic.

Yes, I'm aware that Kennedy is a "swing" vote on the Court the way I'm a basketball player. I can shoot the ball at the hoop and occasionally make a basket, but I can't dribble worth a damn. In other words, in 9 out of 10 cases Kennedy sides with the other four conservatives on the bench. But he is nowhere near as conservative as a Samuel Alito or an Antonin Scalia. Can you imagine either of those two writing a decision like the one Kennedy authored in Obergefell? Neither can I. Whoever replaces him will likely serve 30 years or more, so this is as big as it gets.

And now comes the point in the piece where I get to say, "I told you so." In March of 2017, I wrote that Democrats shouldn't waste their efforts filibustering the nomination of Neil Gorsuch to the Supreme Court. Doing so would force Mitch McConnell to employ the nuclear option and do away with the filibuster on Supreme Court nominees. Well guess what happened? Democratic leadership went ahead anyway and filibustered Gorsuch and McConnell went nuclear.

It was one of the most futile gestures I've ever seen Chuck Schumer attempt, especially since he had to have known it was going to fail. How in the world Democrats and, more importantly, progressives could've thought that Republicans wouldn't go to the mat to protect a seat held by the most conservative jurist since the founding of the Republic was beyond me.

Not only was Gorsuch confirmed, albeit by a simple majority, Dems lost the opportunity - as I predicted they would - of thwarting any future justices from being appointed to the Court. And now with Kennedy's retirement at hand and legislative roadblocks severally limited, what are the options available to Democrats?

Well, for starters, leadership should take heed of what happened last night in the New York 14th. Joe Crowley, chairman of the House Democratic Caucus, not only lost to a 28-year old who never held elected office, he got his ass kicked. There's no other way to put this: the progressive wing of the party isn't just energized, it's cruising at Warp 9. Any attempt to soft pedal the process and acquiesce to the "political realities" of the Senate could have disastrous consequences for Dems this November.

I'm serious. Contrary to some of my earlier writings, it now appears as though the only hope that the party has of wielding power again may come from its left flank. If that is the case, Schumer had better be prepared to go all out to block his counterpart from appointing Kennedy's replacement. Whatever procedural maneuvers he has available to him, short of defaulting on the debt, he had better be prepared to use, even if it means shutting down the government.

But even with every trick up his sleeve, Schumer will still not be able to prevent McConnell from getting Kennedy's replacement across the finish line. That's because he only needs 50 yes votes and you can expect Red-State Democratic senators like Joe Manchin and Jon Tester to vote yes. So the next step will come down to mobilizing the base.

It's time to admit the obvious: progressives never took the Scalia vacancy seriously in 2016. While Republicans were able to rile up their base, Democrats seemed unwilling or unable to do the same with theirs. Some of that may have been the fault of then President Obama. His choice of Merrick Garland, a moderate conservative, was seen by many as an olive branch for the GOP. McConnell, however, was not impressed and he stuck that branch right up Obama's ass.

As I wrote last year, whatever else you might've thought about Garland, he was no Thurgood Marshall. If you're a progressive, it's hard getting worked up for someone who is just a micron to the left of Anthony Kennedy. Had Obama nominated a true progressive, who knows what would've happened. Maybe the base would've taken the vacancy more seriously, and when McConnell blocked the nomination, that would've given them the impetus needed to show up at the polls that November. Given that Trump's election hinged on roughly eighty thousand votes over three states, even a modest uptick in turnout could've made all the difference.

This time around the base has no excuse. Merrick Garland will not be the nominee. Trump will pick someone who is to the right of Kennedy. Did you like those 5-4 decisions that sometimes went your way, Libs? Kiss them goodbye. Every single progressive in the country now has a reason to vote this November that they may not have had 24 hours earlier. They may be motivated to impeach Trump, but, trust me, the immediate threat here is front and center and it couldn't be more urgent.

Presidencies are won and lost. Political parties rise and fall. Regulations are written, repealed and then rewritten. The damage to both the State and Justice Departments can be repaired, given time. But judicial appointments, including those to the Supreme Court, are for life. At the rate Trump and McConnell are filling vacancies on the lower courts, it won't be long before the entire country gets transformed. A failure at the ballot box this November will have profound repercussions for generations to come.

Elections have consequences, people. And we are seeing them play out in front of our very eyes.

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